Bangalore District Court
The Diocesan Administrator vs M/S.Trishul Developers on 3 August, 2017
Govt. of Karnataka
C.R.P 67
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS.
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL, BENGALURU,
(CCH-20)
Present:
Sri.G.S.Sangreshi, B.A., LL.B.(Spl.)
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 3rd day of August, 2017.
O.S.No.26123/2008
Plaintiff: The Diocesan Administrator,
Represented by Fr. Francis,
Archdiocese of Bangalore,
Archbishop's House,
No.75, Miller's Road,
Bengaluru-560 046
[By Sri. S.Kanagarajan-Adv.]
Vs
Defendant : M/s.Trishul Developers
Rept. By its Managing Partner,
Sri.K.Prakash Shetty,
'Asha' No.9, Ali Akbar Cross
Road, Off : Cunningham Road,
Bengaluru-560 052
[By Sri.K.M.C.A.-Advocate]
2 O.S.No.26123/2008
Date of Institution of 26.07.2008
suit:
Nature of the Suit (Suit
for Pronote, Suit for
Declaration and Ejectment
Possession, Suit for
Injunction, etc.):
Date of
Commencement of 28.07.2010
recording of
evidence:
Date on which the
Judgment was 03.08.2017
pronounced:
Total Duration:
Years Months Days
09 00 07
( G.S.SANGRESHI )
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.
3 O.S.No.26123/2008
JUDGMENT
This is a suit filed by the plaintiff for Ejectment, against the defendant, directing the defendant to quit and deliver the vacant possession of the suit schedule premises to the plaintiff and for costs.
2. The brief facts of the plaint are that, the Defendant is the Tenant under them, as per the Lease Deed dtd. 31.07.2004, in respect of the property measuring 57,033 Sq. Feet, situated at No.1, Sultan Road, Chamarajpet, Bengaluru, on monthly rent of Rs.2,50,000/- from 01.08.2006 to 31.07.2011, only monthly rental basis. It is stated that, the defendant is not regular in the matter of payment of agreed rents and he is due in a sum of Rs.23,00,000/- for a period of 23 months from August 2006 to June 2008 at the rate of Rs.1,00,000/- per month. As per clause (7) of the 4 O.S.No.26123/2008 Lease Agreement, the defendant agreed to construct a Community Hall for an area of 5,000 sq. feet with the same area of car parking space and hand over the same to the Plaintiff, on completion on or before 31.07.2006, which has not been done by him and thereby, the defendant has deliberately violated the terms of lease Agreement and also committed default in payment of rent. It is stated that, the plaintiff made several requests and demands to execute the building project and pay the arrears of rent, but so far no positive efforts have been taken by the defendant, except seeking for more time, on untenable excuses.. It is stated that, the plaintiff has to carry on its functions connected with religion, charity, education, social and welfare activities, apart from its huge establishment, building repair and maintenance, etc. The 5 O.S.No.26123/2008 plaintiff brought the said facts to the notice of the defendant in its letters on several occasions. Hence, the defendant was issued with a Legal notice on 07.03.2008, calling upon to quit and vacate the suit schedule premises after expiry of the period of there months i.e. on 30.06.2008. Though the defendant received the said notice, he has failed to comply with the same. Hence this suit is filed.
3. In pursuance of suit summons, the defendant has appeared through his counsel and filed written-statement, and amended the written-statement.
4. It is contended by the defendant in the written-statement that, the suit is not maintainable either in law or on facts and the same is liable to be dismissed. The plaintiff has filed the present suit suppressing and 6 O.S.No.26123/2008 misrepresenting the material facts and with an intention of harassing the defendant and the plaintiff is not entitled for the reliefs. It is stated that, the plaintiff and the defendant have entered into an Agreement of Lease dtd. 31.07.2004, for a period of 30 years, pertaining to the suit schedule premises and according to the same, the defendant shall take up the construction of the suit schedule property. And the entire cost shall be borne by the defendant. The defendant agreed to pay a sum of Rs.45,00,000/- as interest free refundable security deposit. The defendant has paid Rs.5,00,000/- on the date of the Agreement and remaining Rs.40,00,000/- shall be used by the defendant herein for the construction of the community hall on an area of 5,000 sq.feet and the Parking area of the same space in the North-East Corner 7 O.S.No.26123/2008 of the suit property. It is stated that, the Defendant made representation on 07.10.2006 before the Asst. Revenue Officer, Chamarajpet Division, Bengaluru for transfer of katha in the name of the defendant as Lease holder, wherein the Asst. Revenue Officer, vide reply dtd. 04.11.2006 sought clarification pertaining to the suit property, stating that, the suit schedule property contains building measuring 75 x 50 and litigations are pending with regard to the suit property and further as per their records the suit property has a burial ground. It is further stated that, the plaintiff has issued a Legal notice dtd.07.03.2008 for termination of the Agreement of Lease dtd. 31.07.2004 and the defendant issued reply dtd. 15.03.2008, explaining in detail about the problems faced by the defendant to take appropriate sanction and approvals which 8 O.S.No.26123/2008 were not brought to the notice of the defendant at the time of entering into the agreement of lease. The tenants occupying the property were not willing to move out of the suit property and vacating the tenants from the suit property took considerable time and effort. Further, there was confusion over the description of the suit property, appearing in the revenue Records, as the suit property was described as burial grounds in BBMP records, as such the suit property was not coming under the commercial category. The termination notice issued by the plaintiff dtd. 07.03.2008 is illegal, unilateral and as per the terms of the Lease Agreement dtd. 31.07.2004 the termination notice can only be issued in terms of clasues- 15 & 7, and as such, the same is not valid and not binding on the defendant. It is further stated 9 O.S.No.26123/2008 that, there were few cases pertaining to the suit property pending against the plaintiff and the same was not informed to the Defendant at the time of entering into the Agreement of lease and it took considerable time to overcome those legal hurdles. It is further stated that, the defendant herein has not violated any terms of the Lease Agreement. The plaintiff being party to the memorandum of Understanding with the tenants knows very well of the fact. It is further stated that, the Plaintiff has made a Representation dtd. 10.12.2008 to the Joint Director of Land Records, South Division, Mysore, seeking correction of the Map in the local area (LA) 48 as the same was showing that the suit property is a Christian burial ground and the same was made by the plaintiff after filing of the present suit. Further, the defendant herein also 10 O.S.No.26123/2008 made a representation dtd 10.12.2008 to the Asst. Revenue Officer, requesting to issue of Katha certificate for 57,033 sq. feet and to make necessary changes in the description of the property. The order dtd. 29.12.2008 passed by the Joint Director of Land Records is also produced. The map shows the description of the property as burial ground, which made the defendant unable to obtain necessary sanction plans and approval from the competent authorities and to construct the community hall, within time and hand over the same to the plaintiff. It is further stated that, the defendant herein has made all efforts and incurred huge expenditure to get the land converted to commercial purpose, sorted all the disputes with the tenants, has obtained appropriate sanctions and approvals from various departments. The 11 O.S.No.26123/2008 substantial increase in the expenditure prior to the commencement of the construction has caused considerable strain on the resources of the defendant. But, now the plaintiff filed this false and frivolous suit to make unjust gain of all the efforts of the defendant. Since there was dispute with regard to the identification and description of the suit property and that, the instant suit is pending, the defendant has stopped payment of rent to the plaintiff. Now the defendant is ready to pay the amount due thereon to the plaintiff as all the dispute regarding the identification and description of the property is resolved. It is stated that one Mr. Puttaraju has issued a Legal notice dtd. 12.01.2009 to the defendant, plaintiff and the Parish Priest, stating that the plaintiff herein and the Parish Priest have not given correct state of 12 O.S.No.26123/2008 affairs pertaining to the suit property and further calling upon the defendant not to put up any further construction on the suit property, failing which necessary legal action will be initiated. The defendant has denied the plaint averments, except the admitted one and further stated that, there was delay in executing the project as on date as the plaintiff was not cooperating with the defendant to obtain necessary clearance from the appropriate authorities and further the land was shown as Christian burial ground in all the revenue records. Therefore, it is prayed to dismiss the suit.
5. On the pleadings of both parties, following issues and additional issues are framed :-
13 O.S.No.26123/2008
1. Whether the plaintiff proves that, it had terminated the tenancy of the defendant?
2. Whether the Plaintiff is entitled for the reliefs sought for?
3. What order or decree?
Additional issues
1. Whether the defendant proves that the termination notice dtd. 07.03.2008 was not issued in compliance of clauses-15 and 7 of the Lease Agreement dtd. 31.07.2004?
2. Whether the defendant further proves that, the said termination notice is not valid and is not binding on him?
6. In support of plaintiff's case, the plaintiff is examined as P.W.1 and got marked 4 14 O.S.No.26123/2008 documents as Exs.P.1 to P.4. In support of the defendant, the defendant got examined as D.W.1 and got marked 29 documents as per Exs.D.1 to D.29.
7. Heard the arguments.
8. For the reasons stated in the subsequent paragraphs, I answer above issues as follows:-
ISSUE No.1 :- In the negative
ISSUE No.2 :- In the negative
Addl.Issue No.1:- In the affirmative Addl.Issue No.2:- In the affirmative ISSUE No.3 :- As per final order for the following:-
REASONS
9. Issue No.1 & 2 and Additional Issue Nos.1 & 2: For the purpose of convenience, these issues are taken up together for consideration.
15 O.S.No.26123/2008
10. Issue Nos.1 & 2 have to be proved by the Plaintiff and Additional Issue Nos.1 and 2 have to be proved by the defendant.
11. The relationship between the Plaintiff and the defendant as Landlord and Tenant is admitted. The lease Deed dtd. 31.07.2004 was executed between the Plaintiff and defendant, for a period of 30 years from 30.07.2004. The plaintiff has issued the Legal notice dtd. 07.03.2008 marked at Ex.P.1 to the defendant, asking the defendant to quit, vacate and handover the vacant possession of the shop premises in his occupation on the expiry of the tenancy month on 30.06.2008. The defendant has replied to the said Legal notice, vide its Letter dtd. 15.03.2008, marked at Ex.P.4. 16 O.S.No.26123/2008
12. For the sake of convenience, it is relevant to reproduce the contents of Ex.P.1/Legal notice, as under:-
"1. Our client informs us that you are a tenant under our client as per Deed of Lease on 31.07.2004 entered between you and our client thru his duly constituted power of attorney Msgr T Jebamalai, Vicar General, Archdiocese of Bangalore, regd as Document No.830/'05-'06, Book No.I, stored in C.D. No.BSGD.51/05-06 in the office of the Sub-Registrar, Basavanagudi, Bangalore, in respect of shop property bearing No.1, Ward No.46 of Sultan Road, Chamarajpet, Bangalore, on a monthly rental of Rs.1,50,000/- for the first two years from the date of Agreement and thereafter, at Rs.2,50,000/- per month from the date of commencement, on the twenty fifth month from the date of the Agreement for the next 60 months and the tenancy month being calendar month.
2. Our client informs us that you are not regular in the matter of payment of agreed rents and you are due in a sum of Rs.19,00,000/- being due for a period of 19 months @ Rs.1,00,000/- per month (Agreed rent is Rs.2,50,000/- but paid only Rs.1,50,000/- so far) from August, 2006 till February, 2008.17 O.S.No.26123/2008
3. It is further informed by our clients that as per clause (7) of Lease Agreement referred above, you have agreed to construct a community hall of an area of 5,000 sq. ft with the same area of car parking space and handover the same to our clients on completion on or before 31.07.2006, but so far you have not executed this project for the reasons best known to you, thus you have purposely, deliberately and wantonly violated the terms of lease agreement mentioned supra.
4. Our clients requested and demanded several time for executing this project and payment of the arrears of rents, but you have not taken any positive effort to initiate action on the same till this date. Our client has shown sufficient indulgence in this matter and he cannot afford to wait any longer, as the Archdiocese has to carry on its functions connected with religion, charity and education apart from other essential services, therefore, you are hereby called upon to pay the same at the earliest as per the Lease Agreement existing between you and our client, therefore you are hereby called upon to execute project at the earlier.
5. You are also aware that, as per clause-15 of the Lease Deed executed between you and our clients on 18 O.S.No.26123/2008 31.07.2004, in the event of the lessee committing defaults In payment of six months rents during the period of lease, the lessors shall issue a written notice to the lessee calling upon to pay the arrears within 30 days, if the lessee fails to pay the arrears even on the expiry of the said period, then the lessors may determine the lease, irrespective of the period of lease.... and the lessors shall be entitled to re-enter.... and assume possession...
Accordingly, our client determines your tenancy on the expiry of 30th June 2008 and after adjusting your arrears of rent from the Earnest Deposit amount paid by you and the balance amount if any, will be refunded at the time of vacating the property in your occupation as a lessee.
WHEREFORE, our client instructs us to call upon you, which we hereby do, that they determine your tenancy on the expiry of 30th June 2008 and you are hereby called upon to quit, vacate and handover the vacant possession of the shop premises in your occupation on the expiry of tenancy month on 30th June, 2008, failing to do so, our client will have no option except proceeding against you in the court of law for your eviction also recover the arrears of rent and you will be held liable for all costs, risks and consequences arising thereof.19 O.S.No.26123/2008
13. It is also relevant to reproduce the contents of Ex.P.4/Reply notice, as under:-
a) After the lease agreed was signed on 31 July 2004, we would not proceed with the utilization of the leased land due to numerous factors some of which are given below:-
(i) There were tenants occupying the property who were unwilling to move out. Some of these tenants had even made representation to Govt. agencies.
Vacation of these tenants by paying suitable compensation, took considerable time and effort.
(ii) There was delay in obtaining the documents of the land for planning the construction activity. There was delay in issuing of the Khatha extract for the property held under the schedule by Bangalore Mahanagara Palike Authorities.
(iii) There was confusion over the description of the property appearing in the revenue records. The land referred to in the lease agreement written-statement described as Burial Ground in Bangalore Mahanagara Palike records and therefore, was not coming under the commercial category. Sorting out these issues took considerable time, effort and expenditure before any plan for 20 O.S.No.26123/2008 construction on the land could be made out and submitted for approval.
(iv) There were few cases pertaining to the land pending against the Church. The details of which were not informed to us by the Church. A copy of one of such case is enclosed. We have to deal with these cases and overcome the legal hurdles at considerable cost and effort which further delayed the starting of the proposed project at the site.
(v) At every stage of our proposal to utilize the land we have been encountering many hurdles at Local level, Corporation level and from the Government Level which took lot of time for us to sort out. All these contributed to delay in obtaining various clearances and approval of the plans.
(vi) During the meeting of Mr.K.Prakash Shetty, Managing Partner, Trishul Developers, sometime during Nov. 2006 with Mr.Ronald D'souza, Estate Officer, various issues pertaining to the utilization of the land were discussed and it was brought to his kind notice that we have been only incurring expenditure from August 2004 till date without any revenue.
(vii) On 20 Nov.2006 we had forwarded a letter to 'The Estate Manager of Archdioceses' on the subject explaining 21 O.S.No.26123/2008 the position and enclosing a copy of the proposed plan of construction for his approval (A copy of our letter is enclosed). The Estate Manager has written to the Commissioner, B'lore endorsing the sanction (A copy of his letter dtd. 23.04.2007 is enclosed).
b) Though, it was our endeavour to start the construction at the earlier so as to generate some revenue, the reality so far is that, we have spent huge sums of money on vacation of the tenants, clearance of legal issues, sorting out cases against the land, payment of lease rent and for safe guarding of the property, etc., without any income or revenue from the property so far.
(c) It is also pertinent to mention here that we have been regularly and timely remitting the lease rent of Rs.1.50 lacs from August 2004 till date which has been acknowledged by issue of receipts by the second addressee. So far no communication or objection has been received by us either from second or third addressee on the subject on the increased lease rent except for the above notice from you now for the first time."
14. It is also necessary to re-produce the relevant clauses of the Deed of Lease dtd. 31.07.2004 marked at Ex.D.1, as under: 22 O.S.No.26123/2008
II. Whereas, the lessee agree to take the Suit property on lease on As is where is condition and also agree to settle the pending disputes with the present occupants and clear all legal hurdles and legal impediments on the Suit property at their won efforts and costs.
III. Whereas the Lessors have decided to give on lease the Suit property on a long terms basis in order to secure regular and substantial income for utilizing the same for charitable and religious purposes on Archdiocese of Bengaluru, have indicated their willingness to let out the Schedule property and whereas the lessee being interested in taking up commercial project for generating substantial income, has approached the lessors and expressed their desire to take the suit property on long term lease and have also submitted their proposals for negotiations and finalization of the terms and conditions for a lease deed to be executed between the lessors and their lessee;
V. 3) Construction of New Structures:-
3. 1) The lessee shall be entitled to take up construction (hereinafter referred to as 'Building') on the suit property. The entire cost of construction shall be borne and met by the lessees alone and the lessee shall not be entitled to claim from the lessors any reimbursement of the 23 O.S.No.26123/2008 cost of superstructures, electrical, water supply, sanitary and other fixtures and fittings made therein at the time of the surrender of the suit property with building thereon on determination of the lease, except the community hall which will be handed over to the lessee as stated herein.
3. 2) The design and manner of construction of the building on the suit property shall be left to the discretion of the Lessee.
3. 3) The lessee is also entitled to obtain plans if necessary for the construction of such building on the suit property and shall furnish a set of sanctioned plans to the lessors;
3. 4) The lessee is hereby authorized to apply for and obtain licences and sanction of plans for the additions, alterations from the Bangalore Development Authority, Corporation City of Bangalore or other competent authority and also to obtain facilities/amenities like water, electricity, under ground drainage at the cost of the lessee and shall furnish copies to the lessor for their files;
5. Renewal:-
The lessor agrees that the lessee at its discretion will be entitled to renew the 24 O.S.No.26123/2008 lease for a further period of 30 years only on the same terms and conditions except for rentals which will be agreed between the parties to reflect the then current market terms for comparable premises. For the renewed lease, the parties will execute fresh lease deed and have the same duly stamped and registered in the concerned Sub-Registrar's Office.
7) Construction for the Lessors:
The lessors have requested the lessee to construct at the North East corner of the suit property, an area of 5,000 sq.feet for their community Hall with the same area if car parking space in the basement of the community Hall as shown in the plan annexed hereto, as per Plan and specification annexed and marked as '1EDC' at the cost of the Lessors which cost to be deducted from and out of the refundable deposit and hand over the same to the lessor on completion on or before 31.07.2006 shall be rented out in the absolute description of the lessor. If the cost of the structure is more than the refundable deposit, then, in that event such amount shall be deducted at the rate of 50% per month on the rentals payable till the entire difference amount is realized in the event of the cost of construction being less than Rs.40,00,000/- , then the lessee shall pay the difference to the lessors as interest free refundable deposit.25 O.S.No.26123/2008
15. Termination In the event of Lessee committing defaults in payment of six months rents during the period of lease, the lessors shall issue a written notice to the lessee calling upon to pay off the arrears within 30 days months. If the lessee fails to pay off the arrears even on the expiry of the said period, then the lessors may determine the lease irrespective of the period of lease, stipulated in this Lease Deed and the lessors shall be entitled to re-enter the premises and assume possession. In that event, the lessee shall be entitled to receive from the lessors, compensation in regard to the superstructure to the extent of the unexpired period of lease in accordance with the following formula.
Unexpired period of Value of the
Lease (No. of years) x superstructure
------------------------------------ ---------------------------
Thirty
15. The Learned counsel for the Plaintiff has argued before the court by referring to the prayer column and the averments and also stressed upon the fact that, the lease period was for 30 years and also stated that, it is an 26 O.S.No.26123/2008 admitted fact that, the Plaintiff church and the defendant company are the landlord and tenant of the suit schedule property. It is further argued that, as per Ex.P.1, notice of termination was issued to the defendant, by determining the tenancy on the expiry of 30.06.2008 and calling upon him to quit, vacate and hand over the vacant possession of the shop premises in his occupation on the expiry of tenancy month on 30.06.2008, failing to do so, the plaintiff church will have no option except proceeding against the defendant for eviction and also for recovery of arrears of rent and further argued that, the said notice was served upon the defendant, who replied to the said notice, as per Ex.P.4. Further, it is argued that, the plaintiff has proved that, it has terminated the tenancy of the defendant, 27 O.S.No.26123/2008 and as such, the Plaintiff church is entitled for the relief's claimed in the suit.
16. On the other hand, the learned counsel for the defendant has argued that, the notice at Ex.P.1 was issued for two reasons (1) violation of clause-7 of the Agreement and (2) non-payment of rent. Further, it is argued that, clause -15 of the lease deed, is also not complied by the plaintiff church before issuing Ex.P.1 notice and he has drawn my attention towards para-4 and 5 of the plaint and also stated that, the Plaintiff church has not properly invoked clause-7 of the Lease Agreement. He further drawn my attention towards para-2 of the notice of Ex.P.1, saying that, the plaintiff church has claimed the rent from August 2006 till Feb. 2008, admitting the payment of earlier rent. Further, he has drawn my attention towards the records of the 28 O.S.No.26123/2008 suit property, wherein the entry of burial ground is shown in the records and that, there were more than 9 tenants, who were inducted into the suit property by the Plaintiff church long back and that, the burden was on the defendant to evict them and the Defendant company has made payments to the tenants as per Exs.D.6 to 11. Further, he has argued that, no Plan can be approved by the BBMP because of the existence of burial ground and the tenants in the suit property and about the mistaken records of the suit property. The lease was not terminated till 19 months. Further, it is stated that, the property was lying in semi public zone which was changed to commercial zone in the later years, with the hard efforts put by the defendant. Further, he has referred to Ex.D.15, 17 and Ex.D.21, saying that, in the map it was 29 O.S.No.26123/2008 clearly mentioned about the entry of the burial ground in the suit property and he has referred to Ex.D.22 to 27, by saying that, the J.D.L.R. has ordered to give up the suit property in the local area map saying that the entry of burial ground was cancelled and in its place, Parish Priest Church, has to be mentioned as per the proceedings at Ex.D.25. He has also referred to earlier sanctioned plan and modified sanctioned plan and the payment of Rs.9.00 lakhs to the BBMP towards the Licence Fee. He has further argued that, the notice issued was not in accordance with Clause-15 of the Lease Agreement, and that, the defendant was not allowed to put up construction in the suit property, as it was not in his control. As such, he has argued that, the suit has to be dismissed, with a direction to the plaintiff to renew the 30 O.S.No.26123/2008 lease for further 30 years from this day, without arrears of rent, if at all claimed.
17. I have perused the entire materials on record, including oral and documentary evidence put forth by both the parties, along with above mentioned oral submissions.
18. It is no-doubt, true that, the suit is filed for eviction of the defendant from the suit property, in pursuance of Ex.P.1 notice, under which the Plaintiff church terminated the tenancy of the defendant.
19. In the plaint para-4, it is stated that, as per clause-7 of the Lease Agreement, the Defendant has agreed to construct a Community Hall of an area of 5,000 Sq. Ft. with the same area of Car parking space and hand over the same to the Plaintiff on completion, on or before 31 O.S.No.26123/2008 31.07.2006. But, so far, it has not been executed this project.
20. In para-5 of the plaint, it is averred that, the defendant has deliberately violated the terms of the Lease Agreement, not only in terms of executing the said building project, also he has violated clause-15 by committing default in payment of enhanced and agreed rents for more than 6 months.
21. In Para-8 of the Plaint, the plaintiff has stated that, he has issued the Legal notice to the defendant as per Ex.P.1 dtd.07.03.2008, calling upon the defendant to quit, vacate and deliver the vacant possession of the suit schedule property on the expiry of the notice period of 3 months i.e, 30.06.2008. In this connection, the 32 O.S.No.26123/2008 averments made in paras-4 and 5 of the plaint are to be considered.
22. The Defendant got his written-statement amended by order of this court and filed the amended written-statement, wherein, it is seen that, para-6A has been included in the written-
statement as per Order dtd. 26.10.2016. It is seen that, the plaintiff has not challenged the said order before the Hon'ble High Court of Karnataka.
23. The para-6A of the written-statement, which is amended, reads as follows:-
'The termination notice dtd.
07.03.2008 issued by the plaintiff is illegal, unilateral and as per the terms of the lease agreement dtd. 31.07.2004, termination notice can only be issued in 33 O.S.No.26123/2008 terms of clause-15. However, the said notice dtd. 07.03.2008 was not issued in compliance of clause-15 and 7 of the Lease agreement, as such, the said termination notice is not valid and is not binding on this defendant'.
24. Thereafter, Additional Issues Nos.1 and 2 are framed on the basis of the amended written statement. The plaintiff church did not file any re-joinder to the amended written-statement .
25. The Defendant has categorically denied the allegations of non-execution of the Lease agreement as stated by the plaintiff church, by narrating the whole problems faced by the defendant company in order to see that, the lease agreement was executed with it's letter and spirit. The Defendant in its written- 34 O.S.No.26123/2008 statement, at para-5, 6, 7 to 12, has narrated the problems faced by him with the BBMP, Government and other Authorities, for getting the Plan approved in view of existence of numerous mistakes in the property records and about the pending litigations filed by the tenants and to vacate them and all these problems have fallen on the shoulder of the defendant, which made him impossible to complete the project in time as per clause-7 of the Lease Agreement. The Defendant has given befitting reply to the notice at Ex.P.1, explaining the entire trauma faced by him.
26. The Defendant has also got marked the documents, which were relied by him to show that, he has not intentionally and purposefully committed any default in implementing the Lease Agreement. But, it is stated that, even the 35 O.S.No.26123/2008 plaintiff has not disclosed, but suppressed the disputes prevailing between the tenants and the plaintiff and also about the existence of the burial ground in the suit schedule property. So, in order to overcome all these problems and defects, the defendant has made correspondence with the concerned authorities to get all the works done in pursuance of Clause- 3 and 7 of the Lease Agreement at Ex.D.1.
27. In the evidence before the court, PW.1 who is the Administrator of the Plaintiff Church, has stated that, the defendant has deliberately violated the Terms of the Agreement. In the cross examination by the Defendant's counsel, it is clearly noticed that, he has admitted that, there is mention of burial ground in the part of the Suit property in BBMP Records. But, he has denied that, they have suppressed the existence 36 O.S.No.26123/2008 of the burial ground. Further, it is noticed that, he has not seen nor known all the revenue records of the suit schedule property. It is mentioned in the Lease Agreement that, there was building in the suit property, but he does not know the measurement of it. It is further stated that, it is true to say that, there were many tenants in the building and they were given on lease by the Plaintiff Church. Further, it is stated that, though suggestion was put to this witness, stating that, there was MOU dtd. 06.04.2005 by the defendant with one Mary K.T., making the plaintiff church also a party, in order to evict the said Mary K.T., which is denied by him. Further, he has denied that, there was MOU with other tenants and the defendant. Further, it is stated that, it is false to suggest that, the suit schedule property was shown as burial 37 O.S.No.26123/2008 ground in all the revenue records and that, the burial ground is shown as CTS-253 in the local area map no.48. Further, it is stated that, the defendant was supposed to put up Community hall measuring 5,000 sq. feet, for the use of the church. But, he denied that, there were various litigations filed by the others when this lease was executed. But, he has stated that, he does not know that, the defendant took 2-3 years to vacate the tenants from the suit property by paying them compensation amount. It is further denied by PW.1 that, since the tenants were in occupation of the area measuring 75 x 50 feet, the plaintiff church is not entitled for the vacant possession of the suit property. The Defendant produced the M.O.U. executed by the tenants in favour of the defendant as per Exs.D.6 to D.11. So, the say of the plaintiff that, it is false to say 38 O.S.No.26123/2008 that, there was dispute between the tenants and the plaintiff church is not acceptable and it is also stated that, he does not know that, the BBMP has refused to enter the name of the Defendant as lease holder of the suit schedule property and due to the efforts made by the defendant, the BBMP has corrected the extent of the suit property and removed the entry of burial ground from the suit schedule property. He has also stated that, he does not know the said order, in that respect made on 29.12.2009 by the J.D.L.R., Mysore. The defendant has also marked the lease Deed as per Ex.D.1. Further, the PW.1 has also stated that, it is false to say that, the delay in executing the terms of lease deed, was not due to it's inaction, but due to the above mentioned litigations. Further, it is stated that, he was not aware of the fact that, on 39 O.S.No.26123/2008 07.10.2006, the defendant has filed the Application before the BBMP, Chamarajpet Circle, to permit it to construct the community hall in the suit property and the BBMP officials have visited the spot and they have refused to give permission to the defendant, on the ground that, the suit property is shown as burial ground and there is difference in the measurement of the suit property. Further, it is stated that, he was not aware of the Endorsement issued by BBMP on 22.01.2007 to that effect. Further, he has denied that, upto 15.03.2008, the suit property was burial ground and from 15.,03.2008 onwards, the suit property became commercial business land, in view of the efforts of the defendant. Though, the PW.1 has stated that, the nature of the land which was given at the time of the execution of the lease was burial ground, 40 O.S.No.26123/2008 it is seen that same was later entered as commercial land as per order of the J.D.L.R.
28. Further, it is also stated by PW.1 that, he was not aware of the fact of removal of the entry of burial ground in the revenue records and the BDA has brought the suit property into commercial business land. Further, it is noticed that, the PW.1 has denied the suggestion to the fact of litigation and disputes and the delay caused in implementing the lease agreement due to the existence of the burial ground in the suit property and in the revenue records and about the measurement and the change of katha and Sanctioned plan. The defendant, it appears, moved from pillar to post to clear all the disputes and to correct the revenue records, which were not correctly shown at the time of execution of the lease, were done with 41 O.S.No.26123/2008 correspondence. So, though, the PW.1 has denied all the suggestions of the defendant about the delay caused in implementing the lease agreement, but it is due to the reasons mentioned and the problems faced by the defendant, in getting clearance from the competent authorities, which in normal course could not be completed within the time frame fixed in the lease agreement.
29. Now, coming to the evidence of D.W.1 on record, he has reiterated the contents of the written-statement and he has been cross- examined in detail by the Plaintiff. It is noticed that, DW.1 is the authorized person of the Defendant Company, as per Ex.P.2, which is the Resolution Copy. Further, he has narrated all the problems and difficulties faced by the defendant in executing the lease agreement. He also denied 42 O.S.No.26123/2008 that, since there were no tenants in the suit property, the defendant company has not filed any suit against the tenants. DW.1 denied that, the tenants have not filed any case against the plaintiff and the defendant company has not commenced the work in the suit property. He has further stated that, the construction work was started in the month of July, 2007. He has further stated that, the defendant company has started the said work, according to the sanctioned plan.
30. Further, DW.1 has stated that, the company has produced the Bank statement regarding the payment of rent, through cheques, but it has not deposited the rent in the Court, and was paid in the office of the Plaintiff through cheque. Further, the MOUs of the tenants as per Exs.D.6 to 11 were executed 43 O.S.No.26123/2008 between the tenants and the plaintiff for vacating the tenants from the suit property. DW.1 has admitted the suggestion of the plaintiff that, the tenants have vacated the suit property after taking some amount from the Defendant company. In other words, the plaintiff church itself has admitted that, the tenants have vacated the suit property after receipt of the compensation as per Exs.D.6 to D.11. It is also admitted by DW.1 that, Exs.D.6 to D.11 are executed within one or two months after the date of execution of Ex.D.1. It is further stated that, it is false to suggest that, as per the MOUs, the tenants have not vacated the suit property. It is denied that Exs.D.6 to D.11 are false documents.
31. Further, it is stated by PW.1 that, it is true to suggest that, the tenants were given 44 O.S.No.26123/2008 lease in the suit property by the Plaintiff Church. DW.1 has got marked Exs. D.6 to D.11-M.O.Us of the tenants executed between them and the plaintiff church for vacating the suit schedule property and they are executed in the year 2004, within one month or two months, after execution of Ex.D.1. Though, the defendant company has tried to vacate the tenants from the suit property, they could not vacate. It is further stated by DW.1 that, Exs.P.13 to P.16 are standing in the name of Perish Priest in respect of the property No.1 and in Ex.D.18 it is mentioned in the second para that, 'revised master plan 2015, as under:-
"ºÁUÁV Revised Master Plan-2015gÀ°è ¸ÀzÀj ¥ÀæzÉñÀz° À è ºÉa£Ñ À ¨sÁUÀ Commercial Business ªÀ®AiÀÄzÀ°èzÄÀ Ý ¨sÁUÀ±BÀ ¥ÀæzÉñÀ ¸ÁªÀðd¤PÀ ªÀÄvÀÄÛ CgɸÁªÀðd¤PÀ ªÀ®AiÀÄzÀ°è §gÀÄwÛgÄÀ ªÀÅzÀjAzÀ ¥ÀÇtð ¥ÀæzÉñÀª£À ÀÄß ªÁtôdå G¥ÀAiÉÆÃUÀPÉÌ JAzÀÄ ªÀVðÃPÀj¸À®Ä ¸À¨sÉAiÀÄÄ wêÀiÁð¤¹gÀÄvÀÛzÉ JA§ÄzÀ£ÀÄß F ªÀÄÆ®PÀ w½¸À¯ÁVz"É.45 O.S.No.26123/2008
32. It is further stated that, Defendant Company took considerable time to get the tenants vacated from the suit schedule property. The defendant company did not receive all the revenue documents of the suit property from the plaintiff church. The defendant company has obtained sanctioned plan in the year 2007 itself. Ex.D.26 is the modified plan, which was issued only after surrendering the earlier sanctioned plan, obtained in the year 2007. Ex.D.25 is the Order of the Joint Director of Land Records, dtd. 29.12.2008, which says about the burial ground in the suit schedule property. On perusal of Ex.D.25, it is seen that, it is an order of the J.D.L.R., South Range, Mysore Dt. dtd.29.12.2008, wherein it is held that, in the suit survey property No.253, there is mention about the Perish Priest St. Joseph church and that, it has been left out in 46 O.S.No.26123/2008 the local area map. So, when the representation was given to the J.D.L.R., the JDLR, acting under Rule-73 of the K.L.R.Act,the mention of the burial ground in CTC 253 LA.Map.48 situated at Chamarajpet, Bengaluru city was removed and it was directed to enter in its place as 'Parish Priest St.Joseph Church. This was done only on 29.12.2008 i.e., after four years of execution of the Lease agreement. So, until and unless the entry of burial ground in the suit property was removed from the records, the defendant company could not execute the terms and conditions of the Lease ie., Ex.D.1.
33. Having noticed the above evidence and the arguments of both the sides, it is clear that, the terms and conditions of the Lease deed at Ex.P.1 were not executed not only by the Defendant, but also by the Plaintiff Church. The 47 O.S.No.26123/2008 Defendant has stated the problems and delay in executing the said Lease Deed. As already stated, the plaintiff church itself has written a letter to the Commissioner of the BBMP on 23.04.2007, asking to issue Sanctioned plan in favour of the defendant company. It is stated in the said letter, which is marked at Ex.D.12 that, "as per the lease deed page no.9, clause 14.2, Trishul Developers is to execute all deeds, and things for the purpose of securing all the required licenses and other sanctions from various authorities. We further write this letter to issue the Sanctioned plan in favour of Trishul Developers".
34. It is seen that, the Lease deed was executed on 31.07.2004, this letter at Ex.D.12 was issued by the Plaintiff church on 23.04.2007, asking to issue the sanctioned plan in favor of the defendant company. Already, the plaintiff 48 O.S.No.26123/2008 church itself has delayed for three years for getting the sanctioned plan issued by writing a letter at Ex.D.12. Ex.D.15 is the Hissa Tippani, which says the existence of the burial ground in the suit property. Ex.D.15(a) is the map issued by the Joint Director of Land records, showing about the existence of the suit property. Further, Ex.D.17 is the copy of the Resolution No.85/2008 dtd. 15.03.2008 of the BBMP, which says that, the major portion of the suit property comes under the commercial business area and it comes under the zone of public as well as partial public zone and it was resolved to categorise the suit property for commercial use. This Resolution was taken on 15.03.2008 i.e., nearly after four years of executing the lease deed at Ex.P.1. Ex.D.18 is the letter addressed by BBMP to the Defendant company, intimating about the 49 O.S.No.26123/2008 conversion of the property into commercial use, which is dated 23.04.2008. So, both the letters give an impression that, the property which was leased to the defendant was not at all converted for commercial purposes. So, it took nearly four years to change the nature of the land into commercial purposes as per Ex.D.17 and D.18.
35. Further, the defendant has got marked the Legal notice dtd. 12.01.2009 marked at Ex.D.19 addressed to it, Plaintiff church, The BBMP Commissioner, Deputy Commissioner, Bangalore Urban, etc., asking all of them to restrain from constructing any building over the suit property and also stating that, he will take appropriate action against all of them if the construction is proceeded with, over the suit schedule property. This Legal notice is issued on behalf of one B.P.Puttarju, who claims to be 50 O.S.No.26123/2008 Parish Council Member , Pastoral Parish Council St.Joseph Church. This Legal notice has been issued to the defendant company, as well as others, which has also caused hindrance in executing the Lease Deed.
36. Ex.D.23 is a letter issued by St.Joseph's Church dtd. 10.12.2008 to the J.D.L.R., Mysore to make correction in the map of the suit property. The plaintiff itself has corresponded with the J.D.L.R about the change to be made in the map of the suit property on 10.12.2008 i.e., nearly after four years of the lease. Ex.D.24 is a letter issued on behalf of the defendant on 10.12.2008 to the BBMP asking them to make correction of the property records of the suit property and to transfer of katha.
37. Ex.D.27 is the Order sheet and proceedings of the BBMP narrating about the 51 O.S.No.26123/2008 suit property. As per Ex.D.27, the defendant company has paid Rs.4,21,000/- to the BBMP as licence fee.
38. On perusal of the above proceedings and letters maintained by the BBMP itself revealed clearly that, this Defendant company has paid the licence fee to the BBMP and there was delay on the side of the BBMP, as well to do the official acts as per the letters issued by the defendant company with regard to the change of the land, cancellation of the entry about the burial ground in the suit property and the change of map etc.,
39. It is further revealed from the records at Ex.D.28 that, the BBMP has issued to the plaintiff, communicating about the cancellation of the entry of the burial ground , as on 11.08.2009. Ex.D.29 is the letter addressed by the 52 O.S.No.26123/2008 Defendant company to the Joint Director of BBMP, Bengaluru about the permission to be granted to retain the remaining portion of the property. It appears that, no such permission came to be given after this letter.
40. From the above records, including the documents at Ex.D.21 and 22 and 26, which are Sanctioned plan and modified sanctioned plan, it goes to show the entry of the burial ground in the suit schedule property was cancelled and modified sanctioned plan has been issued to the defendant company. In case the lease land was free from encumbrance including the above mentioned problems, the defendant company would have started the execution of the terms and conditions of the Lease Deed. The Defendant is a company consisting of Directors, having invested huge money in the project work. 53 O.S.No.26123/2008 In this case also, the Defendant company invested huge sums of money without any profit for these years. So, it cannot be said that, the defendant has failed to execute the lease deed at Ex.P.1, it is because of all these laches and lacuna about the suit property, the delay has been caused. The plaintiff church has admitted that, they have corresponded with the BBMP after exactly four years of the lease deed.
41. Further, it is a clear case wherein, the plaintiff church had issued a legal notice at Ex.P.1, terminating the tenancy of the defendant, without a clear picture of the suit property with regard to the records and about the litigations and also of about the existence of the burial ground, etc. As per clause-7 of the lease agreement, certain acts were to be done by the plaintiff church also. It is true that, a duty 54 O.S.No.26123/2008 to see that, the plan and other matters was to be discharged by the defendant by approaching the statutory authorities, it does not mean that, the plaintiff church should hand over the uncleared, disputed land to the defendant company to execute the lease deed. The important duty was cast upon the plaintiff church to clear all the disputes of the tenants and to hand over the clear cut records of the suit schedule property, by removing the entry of the burial ground,etc., So, in my opinion, the plaintiff church itself has failed to join hands with the defendant company to execute the Lease Agreement. The first letter addressed by the plaintiff church itself for the issuance of sanction plan, was written on 23.04.2007 itself, i.e, nearly after three years of the execution of the lease deed. It shows that, the plaintiff church itself was slow in executing 55 O.S.No.26123/2008 the lease agreement. The defendant has made the payment of rents upto the month of June, 2008, for the vacant land and not for the shop premises, as mentioned in Ex.P.1 notice, wherein, it is mentioned by the Plaintiff church that the defendant should vacate and hand over the shop premises. It is to be stated that, the shop premises were not at all given on lease and the defendant was not allowed to put up such construction, in view of the latches and lacuna on the part of the plaintiff church. So, the defendant went on paying the rent, for the vacant land without getting any income from the same.
42. To conclude, it is to be stated that, the Defendant had to evict the tenants who were occupying the suit property, in order to start the construction in the suit property. In order to 56 O.S.No.26123/2008 evict the tenants, the defendant had to enter into various M.O.Us with the tenants to evict them on payment of compensation amount of Rs.32,25,000/-, to 9 tenants as per Exs.D. 6 to P.11. The plaintiff was aware all these transactions, since the plaintiff was also a party to the said M.O.Us.
43. Thereafter, the defendant had made representation to the B.B.M.P. for change of Katha of the suit property to include the defendant as Lease holder. But, however, the clarification was sought stating that, the suit property consisting the building , measurement of 75 x 50 feet, litigations are pending with regard to the suit property and that, as per records, the suit property is a burial ground. The defendant again made representation to the A.R.O., B.B.M.P. for change of katha and the A.R.O. 57 O.S.No.26123/2008 had replied on 22.01.2007 that, the change of katha in favour of the defendant cannot be granted, as the revenue records show the description of the suit property as Christian burial ground. Further, that only an area of 340 x 70 is stated to have revenue assessment. However, the defendant continued its efforts for developing the suit property and obtained the sanctioned plan to put up the building on 18.05.2007, but could not continue with the same, since the suit property was recorded as burial ground in the revenue records and that it was not coming under the commercial zone. The defendant took all necessary steps to resolve all hurdles which were existing for developing the suit property and also got an order from the B.D.A., converting the suit property for commercial use in the revised map of 2015. 58 O.S.No.26123/2008
44. It is further contended that, the plaintiff has concealed such material defects from the defendant while entering into the lease agreement and the plaintiff requested the defendant to settle the dispute and to undertake the development by making necessary application to the appropriate authorities. In view of the termination being bad, the defendant is not liable to pay any land rent to the plaintiff during the period of pendency of the litigation and also the defendant is entitled for extension of the lease period spent in the litigation.
45. It is to be noted that, the defendant has not violated any terms and conditions of the lease agreement. Further, the construction of the Community Hall was delayed due to the reasons beyond the control of the defendant, as 59 O.S.No.26123/2008 there was improper reflection of the description of the title deeds in the revenue records and the case of the tenants were pending and that, the defendant was unable to take sanctioned plan from the competent authorities. The eviction of the tenants from the suit property took considerable time and the plaintiff is aware of the said difficulties faced by the defendant. The plaintiff being a party to the M.O.U with the tenants knows very well all these facts. Further, it is to be held that, on perusal of all these problems and hurdles faced by the defendant, it is clear that, the defendant has not violated Clause-7 of the lease deed. The plaintiff himself has made a Representation to the J.D.L.R. on 10.12.2008 to make necessary changes by entering the plaintiff's name instead of Christian 60 O.S.No.26123/2008 burial ground in the records and the said representation was made, after filing of the suit.
46. As per Clause-15 of the Lease Deed, the plaintiff was supposed to issue notice calling upon the defendant to pay the arrears of rent within 30 days and if the defendant fails to pay the arrears of rent within 30 days, the plaintiff was entitled to terminate the lease. However, the plaintiff herein vide its notice dtd. 07.03.2008 has issued the termination notice directly, without complying with the terms of Clause-15 of the Lease Deed and without giving opportunity to the defendant to pay the arrears of rent within 30 days and continuing with the lease terms. Hence, it can be said that, the termination notice issued by the plaintiff church is bad in law and facts.
61 O.S.No.26123/2008
47. Since the plaintiff has unilaterally and without any reason filed this suit, which was pending for around 9 years, during which period the defendant could not develop the suit property. Since the pendency of the suit was also a root cause for the defendant in not developing the suit property, he cannot be held liable for the said delay and the defendant has not used the suit property so as to make him to pay the arrears of rent during the pendency of the suit. At the same time, during the pendency of the litigations, the defendant could not develop it nor use the suit property, which was lying vacant for all these years during the pendency of the suit. As such, it is proper and reasonable as per law the lease period has to be extended by deducting the period spent for litigation. As 62 O.S.No.26123/2008 such, the defendant is entitled for extension of time.
48. So, as the justice warrants, the plaintiff church shall have to extend the lease for further period of 30 years, for the fulfillment of the said lease, without asking for arrears of rent for the vacant land. If the Plaintiff church accedes to the said demand or request, the purpose of the justice will be served. Otherwise, the defendant who paid rent for the vacant land, without getting any income as per the Agreement, is sure to get affected, in all means. Therefore, I am of the opinion that, the plaintiff church shall give an another opportunity, to the defendant to comply the terms and conditions of the agreement, by extending 30 years from this day without asking for the arrears of rent. 63 O.S.No.26123/2008
49. Further more, I am of the opinion that, the plaintiff church has failed to prove that, it had terminated the tenancy of the defendant and that, it is entitled for the relief's claimed in the suit. On the other hand, the defendant company has proved that, the termination notice dtd. 07.03.2008 was not issued in compliance of clause-15 and 7 of the Lease Agreement dtd. 31.07.2004 and that, the said termination notice is not valid and is not binding on him.
Accordingly, I answer Issue Nos.1 and 2 in the Negative and Additional Issue Nos.1 and 2 in the Affirmative.
50. Issue No.3:- In the result, I proceed to pass the following:-
64 O.S.No.26123/2008
ORDER The suit of the plaintiff is hereby dismissed.
Under the circumstances, there is no order as to costs.
Draw the decree accordingly.
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(Dictated to the Stenographer, directly on computer, transcript thereof, is corrected and then pronounced by me in the open court on this the 3rd day of August, 2017)
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(G.S.SANGRESHI) XXVI Addl. City Civil Judge, Mayo Hall, Bangalore.65 O.S.No.26123/2008
SCHEDULE PROPERTY All that piece and parcel of the property bearing No.1, Sultan Road, Chamarajpet, Bengaluru Mahanagara Palike, Ward No.6, Bengaluru, bounded on the East by :- Private property West by:- Sultan Road North by:- N.T.Pet 4th Main Road South by:- Private Property.
ANNEXURE
1. List of witnesses examined for the plaintiff/s:
P.W.1 Rev.Fr.D.Deva Dass
2. List of witnesses examined for defendant/s:
D.W.1 Sri.K.S.Puttaswamy
3. List of documents exhibited for the plaintiff/s:
Ex.P.1 Office copy of the Legal notice Ex.P.2 Postal Acknowledgment Ex.P.3 UCP Receipt Ex.P.4 Letter by the Defendant.66 O.S.No.26123/2008
4. List of documents exhibited for defendant/s:
Ex.D.1 Lease Deed
Ex.D.2 Certified copy of the Resolution
dtd. 4.3.2017
Ex.D.3 Certified copy of the of the
Certificate of Incorporation
Ex.D.4 Certified copy of the of the
MOU
Ex.D.5 Certified copy of the of the
Articles of Association
Ex.D.6 to 11 Original MOUs
Ex.D.12 Letter dtd. 23.04.2007 of the
Plaintiff Church
Ex.D.13 Katha Certificate
Ex.D.14 Katha Extract
Ex.D.15 Certified copy of the Tippani.
Ex.D.15(a) Certified copy of the sketch
Ex.D.16 Akarband Uttar
Ex.D.17 Certified copy of the Resolution
Dt. 15.3.2008
Ex.D.18 Certified copy of the Approval
letter of the BDA
67 O.S.No.26123/2008
Ex.D.19 Legal notice
Ex.D.20 UCP cover
Ex.D.21 Certified copy of the Map of
the Local Area 48
Ex.D.22 Rectified Map of the Local Area
48
Ex.D.23 Certified copy of the
Representation
Ex.D.24 Letter
Ex.D.25 Certified copy of the order dtd.
29.12.2008
Ex.D.26 Modified Sanctioned plan
Ex.D.27 Certified copy of the entire
proceedings before BBMP
Ex.D.28 Order dtd. 11.08.2009
Ex.D.29 Letter dtd.4.2009.
(G.S.SANGRESHI)
XXVI Addl. City Civil Judge, Mayo Hall, Bangalore.